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This month two circuits held, respectively, that offenses cannot serve as predicates under the Career Offender Guideline or the Armed Career Criminal Act (ACCA) because they can involve force against property as well as against persons.

The Tenth Circuit held that robbery under the Hobbs Act, 18 U.S.C. § 1951, is not a crime of violence under the Career Offender Guideline (COG), U.S.S.G. § 4B1.2. See United States v. O’Connor. The enumerated clause of the COG identifies “robbery” as a crime of violence. The Tenth Circuit held that the elements of this generic offense include the use or threatened use of force against a person, but not against property. Hobbs Act robbery, by contrast, can involve “actual or threatened force, or violence, or fear of injury, immediate or future, to . . . [a] person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added). The COG’s definition of robbery …

The Second Circuit’s most recent criminal opinions involve rather boutique issues. The Circuit has addressed, for example, whether a bail bond forfeiture must be vacated if a defendant dies while his appeal his pending (no), and whether the Circuit has jurisdiction to review a conviction when the defendant writes in the administrative section of the appeal form that he only seeking review of his sentence (yes).

Meanwhile, in the Southern District, Anthony Weiner’s attorneys have filed an interesting and detailed sentencing memorandum. The memo is instructive to attorneys representing defendants in child pornography cases. Of particular interest is the memo’s exhaustively researched argument section. Part I argues that the Guidelines provide an unreliable benchmark for determining the appropriate sentence in child pornography cases. Part II.A identifies aggravating factors that are often present in child pornography cases but which are absent from this case. The case discussion in …

Yesterday the Circuit re-decided United States v. Jones. The panel held that in light of the Supreme Court’s recent decision in United States v. Beckles, armed New York first-degree robbery is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline. See U.S.S.G. § 4B1.2 (2015). (The Guidelines have since been amended to remove the residual clause.) The opinion is available here.

In a concurring opinion, two of the panel’s three judges confirmed that New York robbery is not a violent felony under ACCA’s elements clause. Specifically, the concurrence observed that the Circuit’s decision in United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992), which had held that New York attempted third-degree robbery was a crime of violence under the Career Offender Guideline’s elements clause, had been “abrogated” by Johnson v. United States, 559 U.S. 133 (2010) (“2010 Johnson…

Today, in United States v. Genao, the Second Circuit vacated an illegal reentry sentence as procedurally unreasonable where the sentencing court relied on a factually erroneous presentence investigation report (PSR) to calculate the defendant’s Guidelines range. The opinion is notable both for its analysis of whether an offense under the New York burglary statute is a “crime of violence” and its determination that the district court failed to satisfy § 3553(c)’s requirement that it provide reasons for its sentence in open court.

Roman Bartolo Genao was convicted of illegal reentry, and had previously been convicted in New York state of first-degree robbery and first-degree burglary. At the time of Genao’s sentencing, the Guidelines imposed a 16-level enhancement for illegal reentry sentences where the defendant had previously been convicted of a “crime of violence.” (This Guideline has since been revised to impose enhancements based …

Today in Dean v. United States, the Supreme Court unanimously held that a district court may consider the consecutive mandatory sentence required under 18 U.S.C. 924(c) when imposing the sentence to be served on the underlying offense. You can access the opinion here. The length of the mandatory consecutive sentence bears on the factors to be considered under 18 U.S.C. 3553(a), such as the need to protect the public and to provide adequate deterrence.

“Nothing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count,” the Court explained. In other words, “nothing . . . prevents a district court from imposing a 30-year mandatory minimum sentence under § 924(c) and a one-day sentencefor the predicate violent or drug trafficking crime, provided those terms …

Have you ever wanted to know the average length of sentences for a particular criminal history category for a particular guideline? Do you want to make an argument that cases involving MDMA see a higher rate of below-guideline sentences than other drug cases, either nationally, by circuit or by district?

Then this is the website for you!

The Sentencing Commission has an interactive Sourcebook that you can use to generate tables that are not available in the printed version of the annual Sourcebook. You can use it to compare below-guideline sentences by each primary guideline across the district or circuit, to break down the average length of sentence by criminal history category for each primary guideline, or to find the rate of below-guideline sentences for drug offenses involving different drugs.

You can access the Interactive Sourcebook here:

http://isb.ussc.gov/Login

Our friends at the Sentencing Resource Counsel Project have shared this helpful, …

On Tuesday, the Second Circuit issued a decision in United States v. Brown. The opinion presents an interesting debate about how the federal system punishes defendants accused of child pornography charges. I encourage defense attorneys to check out both the concurrence and dissent, for some powerful arguments about the risks of unreasonable sentences in child pornography cases.

The opinion examines defendant Nathan Brown’s 60-year sentence for procedural and substantive reasonableness. The defendant pleaded guilty to 3 counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and 2 counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The majority (J. Droney) begins with a recitation of some of the more egregious facts, which you can find on pp. 3-11. The basics: The defendant took sexually-explicit photos of girls, ranging in ages from 8 -12, who were in his care and then uploaded …

The Court today issued no published decisions in criminal cases but did decide one criminal matter in a summary order: United States v. Wilson, No. 15-1991-cr (2d Cir. July 26, 2016) (Pooler, Sack, and Lynch).

Wilson had been convicted of two counts: theft of government property, which carries a ten-year maximum prison term, and aggravated identity theft, which carries a mandatory consecutive prison term of two years. The district court (Judge Scullin) imposed the statutory maximum term of 12 years. The Circuit affirmed.

At sentencing, the court correctly calculated the Guidelines range of imprisonment to be 168-210 months and imposed a lower sentence, 144 months, which the Circuit found to be procedurally and substantively reasonable.

But the Circuit noted that it was “troubled” by the district court’s conduct at sentencing. In particular, the court had stated that it felt deceived by letters submitted by the defendant’s wife and father. …

The Second Circuit issued three summary orders in criminal cases today.

In United States v. Clare, 15-1601, the Court affirmed the defendant’s conviction on marijuana and gun charges. Clare argued that the evidence at trial was insufficient to sustain the convictions, primarily because the cooperating witnesses were not credible. The Court rejected this argument, explaining that “the credibility of witnesses is within the province of the jury, not this Court.” Order at 2. In light of the remaining evidence, the Court held that a reasonable juror could have concluded that Clare was guilty beyond a reasonable doubt. Because the evidence was sufficient, Clare’s attorney was not ineffective in failing to move for a judgment of acquittal in post-trial briefing. The Court also affirmed the district court’s denial of a motion to suppress.

“Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irreovocability.” So said the Second Circuit today in United States v. Brown, No. 13-1706-cr (June 14, 2016) (quoting the Supreme Court decision in Graham v. Flordia, 560 U.S. 48, 69 (2010)), in remanding a 60-year sentence for production of child pornography on procedural grounds that look awfully substantive. The opinion contains must-use language for advocates at sentencing for a less-than-extreme sentence in any non-homicide case.

The majority opinion (written by J. Pooler with J. Sack signing on) found that the District Court (J. Sharpe, NDNY) may have misunderstood certain facts in imposing a virtual life sentence for photographing and disseminating sexual images of three young girls and possessing thousands of other images of …

Senior Eastern District Judge Frederic Block issued a 42-page opinion in United States v. Nesbeth, 15-CR-18(FB), calling for a close reexamination of the collateral consequences that follow felony convictions, the ways these consequences hamper rehabilitation efforts, and their inclusion as a factor in determining the appropriate sentence under 18 U.S.C. 3553(a). (N.B. Ms. Nesbeth was represented by Amanda David and the Eastern District Office of the Federal Defenders of New York.)

Following a jury trial in the case, Judge Block imposed a one-year probationary sentence in a case with a guidelines range of 33-41 months. He then issued the lengthy opinion because “sufficient attention has not been paid at sentencing” to the many automatic collateral consequences that flow from a defendant’s felony conviction. Many of these consequences, he wrote, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences” but their …